Lexington Ins. Co. v. Public Adm'r of N.Y. County

Lexington Ins. Co. v Public Adm'r of N.Y. County (2020 NY Slip Op 07500) Lexington Ins. Co. v Public Adm'r of N.Y. County 2020 NY Slip Op 07500 Decided on December 15, 2020 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: December 15, 2020 Before: Renwick, J.P., Gische, González, Scarpulla, Mendez, JJ. Index No. 161619/19 Appeal No. 12625 Case No. 2020-02338 [*1]Lexington Insurance Company, as Subrogor of Wyckoff Heights Medical Center, Plaintiff-Respondent, v Public Administrator of New York County, as Successor Executor of the Estate of Karl W. Christian, Deceased, Defendant-Appellant. Rosenblum Newfield, LLC, White Plains (James B. Rosenblum of counsel), for appellant. Mauro Lilling Naparty LLP, Woodbury (Seth M. Weinberg of counsel), for respondent. Order, Supreme Court, New York County (Paul A. Goetz, J.), entered on or about April 10, 2020, which denied defendant's CPLR 3211(a) motion to dismiss plaintiff insurer's complaint for indemnification, unanimously affirmed, without costs. A vicariously liable party can settle, then seek common law indemnity from a non-settling active tortfeasor (see Cunha v City of New York, 12 NY3d 504, 508-509 [2009]; Rosado v Proctor & Schwartz, 66 NY2d 21, 24 [1985]; Brazell v Wells Fargo Home Mtge., Inc., 42 AD3d 409, 410 [1st Dept 2007]). The fact that there were multiple tortfeasors in the underlying action does not preclude an indemnity claim (CPLR 1602; Frank v Meadowlakes Dev. Corp., 6 NY3d 687, 692 [2006]). Based on the four corners of plaintiff's complaint, the allegations manifest a cause of action for indemnification to which the limitations of General Obligations Law § 15-108 are not applicable. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: December 15, 2020